Employer’s Duty To Guard Against “Foolish” Actions In the Workplace

1st December 2014

An employer was still found liable for the “ignoring of obvious risks and the disregarding of safety procedures” by an employee who “foolishly” removed safety guards from a machine to clear an obstruction, a judge ruled at a recent Court of Appeal hearing.

When a conveyor belt became jammed during the nightshift at a Manchester manufacturing plant, maintenance workers were unable to repair the fault. In order to continue production, the machinery safety guards, which had been installed following an incident four years earlier, were removed.

Mistakenly attempting to use a spanner to free the obstruction, the employee was pulled by the conveyor belt into the moving machinery and had to be cut free. As a result, the operative suffered a broken arm and was unable to return to work for nearly two months.

At the subsequent Crown Court prosecution brought by the Health and Safety Executive (HSE), the employee admitted his actions had, in his own words, been “foolish.” However, the judge took the view that the employer still failed to “do all that was reasonably possible” to ensure the safety of the employee.

Evidence of material risk

At the Court of Appeal, it was argued that there was “no evidence of a breach of duty” by the employer and, consequently, the case should not have been presented for trial by jury. The Court of Appeal explained that even though the safety risk was created by the “carelessness or foolishness” of the employee, the jury trial had been brought because the prosecution had presented sufficient evidence to show the employee had, by his actions, been exposed to potential danger. Therefore, the employer was still liable to guard against the material risk.

According to the HSE, "The company should never have allowed workers to be put at risk by letting them carry out maintenance work to the machine while it was still operating.”

The company was found guilty of a breach of the Provision and Use of Work Equipment Regulations 1998 for failing to ensure routine maintenance work could be carried out safely on the machine and fined a total of £41,500 including costs.

Following the trial, a new safety system has now been installed on the conveyor belt, which makes it impossible for the machinery to operate when the guards have been removed.

Life Saving Treatment Delay Leads To Death Of Young Boy

Failure to spot the symptoms of meningitis and a delay in giving antibiotics, which led to the death of a boy on his thirteenth birthday was judged a “gross failure of care” by the inquest coroner.

Falling ill while on holiday, the boy from Cannock in Staffordshire, was admitted to a South Wales hospital displaying many of the key symptoms of meningitis including, fever, severe headache, neck stiffness and an aversion to ‘bright lights.’

As a sufferer of migraines, he was given paracetamol tablets by an out-of-hours GP to treat the complaint of a ‘severe headache’ whilst tests were being carried out. A consultant paediatrician also failed to spot that the symptoms could potentially be caused by bacterial meningitis.

Seizures requiring urgent transfer

A type of skin rash most commonly known to indentify that infection has spread to the bloodstream may not always be present in some types of meningitis but could also appear at an advanced stage in other types. When some four hours later meningitis was confirmed the boy was already having seizures and required urgent transfer to the University Hospital of Wales in Cardiff.

Tragically, and despite all their best efforts the medical team were unable to save the boy who lost his life to the infection on his thirteenth birthday in hospital.

At the subsequent inquest, it was heard that the delay in administering potentially life-saving antibiotics was contrary to guidelines for suspected meningitis. While expert evidence from a consultant microbiologist cautioned that there was “no guarantee” that antibiotics would have saved the boy’s life, “ the earlier you start treatment the better - early treatment improves outcomes.”

The Coroner ruled that the failure to give antibiotics amounted to a gross failure of care, adding that the failure was “not negligent” as it was very probable that death may still not have been prevented even if the antibiotics had been given at the time.